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Monday, February 21, 2011

Speed kills justice too!

To the Chief Justice, it is all about "speedy disposal of cases." No matter what, a case must be disposed off quickly.

He started out by, of course, blaming the lawyers. He forgets that he was once, a practising lawyer himself. Would he tell us, frankly, that he had never ever asked for a postponement of a case because he had another case fixed on the same date? Or that nobody from his former esteemed firm had ever done so. 

He had gone around town to paint an ugly picture of greedy lawyers having 93 cases to handle a day. To him, even medical certificates are not acceptable anymore.

Perhaps to him, the lawyers' sole purpose of their existence is to delay the disposal of cases. Nothing more and nothing less.

Malaysia is well known for stop gap measures. For measures taken in the heat of the moment, without careful analysis of the real problems, their causes, their classifications and their solutions.

Thus, when some people on jet skis cause the death of some swimmers at a beach some years back, there was of course a chorus of calls to ban jet skis. I remember during the early days of motorcycle helmets, we banned helmets with visors because some hooligans wore helmet with dark visors to rob banks.

It's going to hurt but I am going to say it anyway. Shallow minds only bring with them shallow solutions.

May I ask the Chief Justice, has there been a study on the so called "delays" in the disposal of cases in the Courts? Or to start with, what was causing the so called "backlog" of cases in our Courts?

If there were "delays", what kind of delays? What cause these delays? Because really, to my mind, to lump up all the "causes" of delays and single them out to greedy lawyers is as shallow as blaming the West for all our moral deficiencies.

What about delays which are caused by procedural merry-go-round? What about delays which are caused by the judiciary itself? By its own inefficiency and dogged adherence to an almost medieval process? What about delays occasioned by the Judges or judicial officers having to attend "courses," "seminars" or even "meeting with the CJ"?

I have sat in an open Court doing nothing other than twiddling my fingers and counting sheep in broad daylight for FOUR days consecutively before finally being told that there was no time for the Court to hear my case and that my case was to be adjourned to another date "to be fixed" later. Many others have gone through that too.

Do we blame the Courts? No, we don't. We may bitch about it at the bar but we don't blame the Courts. We don't do so because we understand that that is part and parcel of our legal practice. That the Courts do have many cases to deal with and that it is difficult for the Courts to know exactly when our case will or can be dealt with.

Different kind of delays require different treatment. And surely they also require different solutions. Procedural delays would, for example, require a look at the procedures and their variations, amendments or even wholesale revamp.

Delays caused by the Court's inefficiency would of course require a close look at the number of Judges, their staff and the availability of courtrooms. Delays in the note taking process also require a different solution.

At the moment, the number of Judges, staff and courtrooms have increased dramatically. The note taking delays has also appeared to be solved by the installations of video cameras and recording equipments. But do these really work towards solving delays? Is that all?

Who, may I ask, transcribe all the notes of proceedings from their digital form to a legible analogue form? The Court staff? No. It is the lawyers. We are the one who are lumbered with the job of transcribing the notes when in fact, and in law, it is the Court's duty to do so.

Do we complaint? No, we don't. We don't complain because we understand that the Courts simply do not have the workforce - or even the expertise - to do so. While we take that responsibility as part and parcel of our works, all that we hope is just a bit of appreciation by the Courts.

We do expect the Courts to appreciate that when the Courts determine the cost to be awarded to our clients, for example. Transcribing notes of proceedings is no easy task. It is arduous and tedious, to put it mildly. When we ask professionals to do it, it costs thousand of ringgits, when in law it is the Courts which are supposed to do it. Who pays for this at the end of the day? It is our clients. Isn't it unfair for the Courts to expect our clients to pay  for the works which are supposed to be done by the Courts?

In an appeal to the Courts of appeal, we are required to include these notes of proceedings in the appeal records. Under the rules, we have 6 weeks to file the record of appeal. Time starts to run after we receive the notes of proceedings. But nowadays, the Court says that time starts to run when we receive the CD recording of the proceeding! What the hell is that?

Doesn't the Courts realise that it takes time to transcribe the notes? If we engage professionals, we have to abide by their free times and dates. Why are we - and litigants who are lay persons - being penalised by the Court's own inefficiencies?

That is why I say there must be a close study of the "delays", their causes, their different classifications and types and their solutions. Otherwise we would have an incomplete solutions to an incomplete diagnosis of a disease and its symptoms. What the CJ is doing now is to treat symptoms without knowing what exactly is the disease.

If digital audio and video recordings of the Courts proceedings are the answers to the delays, than why don't we just amend the rules to make it possible for record of appeals to include the digital recordings as part of the record of appeal? Why do we still need to transcribe the recording?

The answer to that is simple. That simply cannot be done because the Court of appeal is bereft of the infrastructure and equipments to make it possible for such digital note of proceedings to be accessed during the hearing of the appeals, either by the Judges or the lawyers.

And so we are lumbered with a half baked scheme. A scheme aimed at speedy disposal of cases by merely assigning blames and guilt and nothing else. In other words, a scheme for which Malaysia is well known for, a short cut. An incomplete stop gap measure. That is what it is.

May I ask the learned Chief Justice, what is the percentage of appeals being lodged to the Court of appeal from the High Courts in relation to the decisions delivered by the High Courts? 90%? 95%? Or is it 99%? May I ask why is there such a high number of appeals?

Let's face it. Nowadays, no litigant is satisfied by the decisions of the High Courts. Almost all of the High Courts decisions end up in the Court of Appeal. Why?

The answer is obvious. Almost nobody give regard to the decisions of the High Courts. And I say that without meaning to cast disrespect on the High Courts Judges, some of whom are really working very hard and some of whom are really good at what they are doing.

However, the speed at which the Judges are moving really leave a bitter aftertaste in the mouth of the litigants. There are Judges who rush through a hearing. There are Judges who insist that cross-examinations be limited to within a certain scope in order to "save time". There are Judges who obviously do not even read the written arguments or even the Court papers because they simply do not have the time. There are even Judges who insist that cross-examinations be done in  writing!

In order the speed up things up, nowadays it is the practise to file a "witness statement," for example. This requirement is not borne out by delays which are caused by lawyers. This requirement is borne out of the inefficiencies of the Courts in taking notes. The obvious - and natural - solution to that is of course for the Courts to have staff with the proper ability and equipment to take proper notes.

Again, a stop gap measure - and obviously, half-baked - was introduced. Parties are now required to exchange "witness statements." That is supposed to solve the problems of note taking. But does that solve the problem? Or does that breed another set of problems which are more serious and insidious?

Through centuries of practice, witnesses are supposed to testify under oath in the witness box. That is so because the Judge can then look at the demeanour of the witness and make an assessment of his character form the way he behaves in the box. The judge can look into his eyes, observe his facial expressions, note the nerve in his voice, the change in his intonation when he either says "yes" or "no" to a question, for example.

On the other side of the coin, the witness, while in the box being asked questions by his own Counsel, is being conditioned progressively for the crunch later, namely, for the opposite Counsel to cross-examine him with probing questions designed to challenge or even discredit his testimony or himself. That is why witnesses are examined firstly by his own Counsel in the box.

Now, by simply exchanging witness statements, witnesses are robbed off the opportunity of being conditioned in the witness box. When he is called into the box, his pre-prepared statement would be taken as read (presumed as read) and cross-examinations follow without further ado. Just imagine. He sits down in the box and the opposite Counsel promptly rain him with questions after questions designed to challenge him. People do not go to Courts and give evidence everyday. Just imagine the stress that a witness has to go through.

Meanwhile, the Judge has also been robbed off the opportunity to  observe the demeanour of the witness while being examined by his own Counsel. That is because the witness does not give an oral testimony anymore, but rather a written statement.

It follows that half of the Judge's opportunity and means to assess the character of the witness has been taken away by the witness statement! To say that the Judge is well handicap would be an understatement!

Does the Chief Justice actually think about this when he perfected this procedure of exchanging witness statements? Frankly, please?

And what about the fact that the witness statement will inadvertently NOT be a statement by the witness in his own words and style? For sure - and I can say this 100%  and more - the witness statement is not going to be drafted and finalised by the witness himself. It is not going to be from his memory. It is not going to be in his own words.

The witness statement, as we all know it, will be drafted methodologically  by the lawyers. It will consist of some carefully chosen words, set out in nice paragraphs and excellent chronology. And so, the testimony of that witness, at the end of the day, could hardly be called as the absolute and truthful testimony of that witness.

Have we ever thought about all these issues? No. Because witness statements are a simple solution to the difficult and time consuming act of taking notes by the Courts.

Do we see the problems which are created by our so-called solutions? Probably not. Because on paper, the solution works and it saves a lot of time. Cases are disposed of speedily. And that is what that matters. Who cares about those little things? Who cares about conditioning of witnesses, character observations and the likes? Those are only thought of by people like Art Harun, the greedy lawyers whose sole preoccupation is to delay cases by taking up 93 cases a day.

The truth is certain procedures are tried and tested for hundreds of years. They are there for a reason. They are there as inbuilt mechanisms to ensure justice is not only done but also seen to be done. Of course we saw it fit to override such evidential procedures - which is an inalienable and essential part of the adversarial system which we practise - to overcome "delays" although such delays have got nothing to do with the procedures but rather the inefficiencies of our Courts. Not only we do that with impunity, we do such thing without even thinking about the real causes of the problems which we had wanted to solve. And by doing so we create a more serious problem which affects the integrity of the trial - and the decision making process - itself. All in the name of expedience and yes, speed.

May I ask the Chief Justice whether the core of the problems, namely, the inefficiency of the Court staff in taking notes has been solved by the introduction of audio recording and exchange of witness statements? The Chief Justice may think so. But with all due respect, it is not solved. The Court staff is still not able to take notes properly and timely. In fact, what is happening now - as pointed out above - the transcribing of the audio recording now has been pushed to the lawyers!

We have a case of the Court appearing to be fast when in fact what is happening is the passing of the proverbial buck to the lawyers! How convenient.

The Chief Justice can deny that most Judges are now driven by their need to satisfy their KPIs as much as he wants but in reality, that is more apparent than one would want to admit. What about these:

  • a lady lawyer had labour pains while arguing her appeal simply because the Registrar of that Court had refused to listen to her request not to fix the case during that period of time as she was expecting;
  • a lawyer fainted in Court because his medical certificate was ignored by the Court which insisted that he proceeded despite his illness;
  • an accused person landed in jail for failing to turn up in Court for a hearing just because the Court had unilaterally brought forward the hearing date without consultation with any party;
  • the Federal Court refusing to postpone a Constitutional case on the ground that the lead Counsel of one of the parties had to undergo cancer treatment;
  • the Federal Court had refused to entertain a Counsel's request to fix a hearing later than the date proposed by the Court in order to enable the Counsel to complete his cancer treatment.

In the last case above, the solicitors told the Court that on the date proposed by the Court, the senior Counsel was going to have his chemotherapy sessions. The solicitors than requested that the case be fixed about 2 or 3 weeks later than the date proposed by the Court.

The Court did not even consider that request and proceeded to fix the case for hearing on the proposed date, on which date the Counsel was to have his chemotherapy done! As a result, the senior Counsel and the solicitors discharged themselves from further acting in that case.

That case involves Constitutional issues which brings with it serious ramifications on the legality of laws. However, the Courts saw it fit to behave in such manner.

Needless to say, the approach taken by the Court in that case - and in the case involving the pregnant lady lawyer - was cold and almost godlike (I feel sinful to associate such action with god, actually, but you all know what I mean). It is in fact, inhuman!

The latest episode in this seemingly unending story of abject failure of justice is the  case involving the challenge mounted against the decision of  Teng Chang Khim, the Selangor State Assembly's speaker, to declare vacant a state seat due to the absence of the state representative.

Tommy Thosmas, Counsel for Teng, sent his junior to ask for postponement as he was engaged in Johor Bharu. In fact before the hearing in the Shah Alam Court, Tommy Thomas had written to the Court informing it of his predicament. The case in JB was fixed months ago and the date now clashed.

As expected, and similar to the approach taken by the Federal Court in the example above, the Court refused postponement and proceeded ex-parte (in the absence of Tommy Thomas).

How sad, especially when we consider the case involved, again, constitutional issues.

The Chief Justice is always quick to blame lawyers for, in his oft-repeated words, "taking too many cases." That statement is irresponsible, untrue and is reflective of the godlike behaviour preferred by Court officials and which is in vogue nowadays.

I have had my dates clash before and it was through none of my doing. I have a case fixed for hearing, say on 1st March 2011. However, I also have various applications, appeals and cases filed in Courts, waiting for hearing dates to be fixed. When the date is finally fixed, it was fixed on 1st March 2011.

IS IT MY FAULT? Have I taken on too many cases? My dates clash not because of me but because the Court has fixed the hearing of the later case on the same day as my other case! Is that too difficult to see?

As pointed above too, the Court would go on fixing a case for hearing even if I tell the Court that I am not free on that date or that I have a chemotherapy session on that date! So, really, IS THAT MY FAULT?

Did the Counsel in the above example ask god to give him cancer needing chemotherapy on the day fixed for hearing? Or did that lady lawyer ask to have labour pains on the hearing date? I am sure not. The least that the Court could do was to be human. Or is that too difficult?

There are also managing Judges who, upon being told that the lawyer is not free on a proposed hearing date, would ask the lawyer to "farm out the case" to other lawyers. Are we dealing with sheep and cows or are we dealing with legal cases involving millions of ringgits or some serious constitutional issues here? Why can't the Judge acknowledge that parties have a right to choose his preferred Counsel? What if the Counsel has taken a retainer fee for the case? Can he just scoot off just because the Court is not willing to fix the case on a date convenient to every party?

Fixing cases for hearing and deciding whether or not to postpone a case is within the discretion of the Court. But it is well settled that such discretion must be exercised judicially. Which means, the discretion must be exercised in accordance with well settled judicial principles and not willy nilly in a godlike manner.

However, it is disappointing to note that such discretion has appeared to be clipped and taken away by the current obsession with the need to speed up the disposal of cases.

With the impending legalisation of plea bargaining in our Courts, I could very well imagine justice being offered on a wholesale basis every morning in the Courts in exchange for a guilty plea. Mark my words.

As for justice, I just need to refer to this piece of judicial circus as proof that all is not well. A person who raped his own daughter not once, not twice, but ELEVEN times was given 2 year jail sentence and 1 stroke of the rotan. Another who broke into a house and stole a laptop on the other hand gets 4 years jail and 3 stroke of the rotan.

Oh, I suppose, the Chief Justice would say the second guy has lousy lawyers!


KK said...

The main culprit for this rot in the judiciary can be blamed on the Mamak.

Except for a few righteous, brave and courageous judges, the judiciary did not really recover from the shameful removal of Tun Salleh Abas and the other two judges.

Kris said...

Sad reflection of the level of thinking that permeates our judiciary or in this case leads it?

To abdicate all humanitarian, judicial and just simple precepts of common decency in the interests of expediency...that is simply not just unacceptable, it should be intolerable.

Fahri said...

Absolutely spot on bro. I am shocked at your self-restraint! ;) I think they should just change the title back to Lord President. The title of Chief Justice is a mockery!

Anonymous said...

It is so sad and so shameful that this is the reality in Malaysia. It is a matter of great concerns for all thinking Malaysians. Accountability,transparency,due diligence and due process have gone out of the window. Do not overly despair though. Solidarity against injustice, incompetence, and corruption is what we need.My heart bleeds for my beloved Malaysia.

agnos said...

sad state of affair. your writing tell me that we have quite a bunch of incompetence and self righteous people in there.. which is to be expected when the chief himself was hand-picked, leap-frogged and put into the numero uno position.

good example of what will happen when nepotism takes over meritocracy..

cinafong said...

I am crying and tearing my hairs out. This is so depressing and I want to stop knowing and reading. And be an ignoramus. sianz.. is the word.

Since I found you, Art,I am more aware but definitely more depressed.

*P* said...

having neither hair to tear nor tears to shed, all i shall say is kudos to you, art. not just for the courage to stand for your convictions but also the self-restraint to contain your obvious anger and frustration in the face of such judicial platitudes. perhaps the woeful state of the judiciary here in malaysia today is only to be expected when justice gets unashamedly and meaninglessly redacted into quantitative KPIs.

cinafong said...

DOn't know why I keep coming back for more, as if I enjoy the flogging. Agony is bitter sweet. Probably 9 out of 10 pa and ma are worried like shit and wondering what's going to happen to their kids.

LAT said...

Professor Art,

Mark my word and you better be preapared for your judgement day befall on 11-11-2011 "The Return of our Lord President, Art Harun" ! Bravo !!

siewchinteo said...

Art - you have a Council that serves and protects you and your members plus a state committee that does likewise.
Should you not take up your issues with them rather than have to fight the cause yourself?

Not all 'employees' in the judiciary are legally trained.
You and all your members are.
So sit your members down and come up with a proper solution rather than go on a witch-hunt.

That aside, your complaints about the judiciary is well-articulated. I hope your suggestions on how to improve it will be likewise.

Liverpool Lawyers said...

All are very important skills...Family Law Liverpool

thebullmastiffs said...

thank you art for your persistence in highlighting this issue. But what bothers me as much is the deafening silence of the bar council in ignoring it as though it's a non-issue.

Foremost, the CJ, an UMNO man, dulu kini dan selamanya, was planted to the post to protect UMNO's interests in future political and constitutional disputes. He assumed the post , carrying with him the thuggish UMNO mentality where the word "justice" does not exist in its vocabulary. He does not have the judicial mind...in fact too few of the present batch of judges do.

In fact, also, I rate Malaysian judges very lowly. They are law graduates who don't have the stomach for the rigours of high tension legal practice. They don't have the competitive edge. And, like their CJ boss, they don't have the judicial mind. Their over riding concern is their rice bowl...security of tenure. Judges of the high courts and higher earn above average incomes which very few lawyers can match. They covet the judicial posts so much that as long as their jobs are secure, they care not a bit whether they have delivered justice.

Coincidentally, most of them are Muslims (I am a Muslim too). The Prophet's words; " 2 out 3 judges will go to hell" seem to have been lost on them. On a deeper thought, I think the Prophet was just stating the minimum number. In Malaysia, it will be 9 out of 10 judges who will go to hell.

I wish I had the time to enlighten the public on how farcical our judiciary is. How they decided the cases brought before them...not on merit, mind you, but on their whims and fancies. And cite instances to show that the most thuggish judges in our judiciary are those at the Court of Appeal and Federal Court...the 2 highest courts in the country. The language they use leaves much to be desired...they are anything but judicious. I think the judges of the Borneo native courts are better and judiciously behaved than the judges at the Court Of Appeal and Federal Court. The latter write about the lofty ideals of justice in their judgments but those are only for public consumption...behind the scene, you wish you have brought your cases before an arbitration committee at a kampung level, like the ones we see in Tamil movies, where justice would be better delivered...you don't believe me?...just wait!

Anonymous said...

Hah! You want pity from us man-on-the-street, ah? You bunch of lawyers are supposed to be the learned minds of Malaysia, the pillars of Malaysia ... Malaysians who have pledged to uphold the constitution and laws of Malaysia, the educated ones. You go to law school to learn about legal process and dispensation of justice.

You come out of law school and found out that the Courts and legal system in Malaysia does not conform with the laws of Malaysian. Yet you blindly continue to follow this flawed system for years and tolerated this nonsense with the occasional whimper and lunch-time marches.

You have only yourself to blame for this predicament. Imagine, if the judges in Malaysia are not well regarded even by litigants in Malaysians, think of how well regarded lawyers in Malaysia are?

You, cream of the society, should stand up for what you believe in a united fashion. Look at what judges and lawyers in Egypt did.

Oh I forget, you are a Malaysian lawyer. You just drive flashy cars, speak flashy English, hangout at flashy places and look at common Malaysians like they are second class. Never mind countless postponements, you will send the bill to the clients anyway!

JaJ said...

Reading your posting and the comments who seems to be unanimiously blaming the judiciary as a whole for the all the ills and so called wrongdoing , it appears that almost the entire judiciary is in shambles and rotting . The lawyers be it in the Bar Council or their bretheren in Sabah and Sarawak seems to be at the receiving end .

As a member of the judiciary , I feel sad and disappointed that , the lawyers couldn't see the woods from the trees . As in any organisation , there are bound to be a few ( in whatever position ) who does not do and act what is righteous and proper , the Bar Council is not an exception .

Be that as it may , I sincerely feel that most of the members of the judiciary ( from the magistrates right to the Federal Court Judges ) have conscience and will never forsake justice to pleased their bosses as what is being claimed by members of the the Bar .

Do not let the actions of so few be a reflective of the judiciary and it stands for . WE TOO ARE HUMANS AND HAVE FEELINGS !

Fahri said...

JAJ, if you claim to be from the judiciary then I do not doubt that. You neglected to read Art's piece carefully and fairly. Because if you did you will appreciate that he is not blaming all the judges although he really could do that. After all, that is precisely what your Chief Justice does. Instead of presenting a balanced consideration of the issues, he blames all the lawyers for the delays forgetting that he was a lawyer before who had no compunction burning his second marriage certificate to hide this from his first wife.

What Art has done in his article, which I thought he accomplished, was to demonstrate just how shallow, short sighted and insufficient the Chief Justice's so called reforms are. He shows them to the eyewash it really is.

As someone in the judiciary you should not be sad and disappointed that 'lawyers cannot see the woods for the trees', but because the institution you serve is so lacking in any moral or ethical authority and is thought of so lowly by members of the general public. You should be sad and disappointed your seniors are not doing enough to rejuvenate this aspect of the judiciary and return it to its halcyon days.

As for your sincere beliefs, you can keep them. When you are ready to face up to reality of our justice system (or rather injustice system) instead of warming yourself against your comfortable beliefs, come down to the ground and roll with us.

Then you can see what life and law is really like away from the safety of your towering bench. Because the lawyers and the public for the most part are like justice in the gutters.

art harun said...

Dear Mr/Ms JaJ,

With all due respect I think you have totally misunderstood my article.

The article was not intended to blame the judiciary and to make it sounds as if the whole judiciary and all judges are in such shambolic state.

Rather what I wish to highlight are:

1) the obsession with speedy disposal of cases impede justice
2) the apparent quick disposal of cases nowadays do not solve the underlying inefficiency of the system - for eg the audio recording does not solve the inability of the court to take proper notes of proceeding
3) hardship has been caused by the obsession with speed both on lawyers and litigants alike

The most important thing which I wish to highlight are:

1) the blaming of lawyers taking too many cases just because their hearing date clash is mischievous, untrue and is reflective of the CJ's god-like approach
2) some judges have failed miserably to exercise their discretion judicially in deciding whether or not to postpone cases
3) the courts have, time and again, failed to give due consideration to lawyers' free dates when fixing hearing dates. The cases of the pregnant lady lawyer, the Counsel with cancer, Tommy Thomas are but small examples of how the courts had acted in an inconsiderate and almost inhumane manner!

I give credits wherever it is due. I did say that there are many judges who are hard working and are really good at what they are doing.

I don't blame the judges but the system which was hatched out by the CJ.

Anonymous said...

here are some jokes to lighten up everybody.
Judge Joke 1
The cross eyed judge looked at the three defendants in the dock and said to the first one, “So how do you plead?” “Not guilty” said the second defendant. “I wasn’t talking to you” the judge replied. “I never said a word” the third defendant replied.
Lawyer Joke 1
Why won't sharks attack lawyers?
Professional courtesy.

Anonymous said...

story-i got a speed ticket for not speeding, so i wanted to challenge it in court but the system beat me, the traffic police a few times never turned up as witness and the judge keep fixing postponement date.Upset and not to waste any more time , i told the judge, i submit to paying fine eventually.

In my opinion, by right, the judge should dismiss the case if the prosecutor witness failed to turn up few times.

Kris said...

Dear Jaj, your air of altruism seems genuine. Your defense of your order though is myopic and blinkered.

Saying that most members of the Judiciary "have a conscience and will never forsake justice to please(d) their bosses as what is being claimed by members of the the Bar" doesn't make it so. Glossing over the problem does as much good as a new coat of paint on a termite infested house.

There are some who do, and for these, my heart goes out to them. They must mourn the fall in standards, the abdication of conscience in the pursuit of their personal interests and standing. But for those of you who stick their heads under a rock and pretend there is no problem, I have no words.

You say "WE TOO ARE HUMANS AND HAVE FEELINGS"? At last count there were approximately 27 million people in Malaysia. All of whom either directly or indirectly turn to you and your colleagues in the hopes of fair dispense of justice. For you are part of a bigger picture, to maintain a civil society. Whither your care for their humanity? Whither your care for their feelings.....

Tan Nam Seng said...

Keep speaking up without fear or favour, Art Harun. Our society needs many more men/women like you to bring it back to the right path.